Appeal – consent orders cannot be appealed on the merits – father sought to withdraw his consent

In Melville (No.3) [2020] FamCAFC 231 (18 September 2020) Kent J, sitting in the appellate jurisdiction of the Family Court of Australia, dismissed with costs a father’s appeal from final orders made by consent on the sixth day of trial.

The court said (from [12]):

“(…) In Robinson & Willis [[1982] FamCA 16] Fogarty J observed:

‘ … [A]s a consent order is made as a consequence of the consent of the parties to the Court making that order and not of an adjudication by the Court, the order may not be challenged by an appeal which is directed to the correctness of that order … it cannot be appealed against on the merits. … ’

[33] … [T]he application of pressure upon a client to compromise litigation is recognised as a necessary and proper part of the function of legal representatives (…).

[34] … [I]f a client under no legal disability has been so overborne by his legal representative that such representative has breached the duty which he owes to the client, then the client’s proper remedy lies elsewhere (…).”

As to the father’s argument that he withdrew his consent by email to the judge’s chambers after the orders were made but before they were entered, the court said (from [71]):

“[71] (…)It would defy common sense and the practical realities of the demands upon the already over-burdened FCC … to impose some additional requirement upon its Judges to monitor, after orders are made in Court, the potential operation of r16.05(1) of the FCC Rules by reference to, not an application filed, but to informal communications that might be received … pending the entry of orders in the normal course. (…)”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

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